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UNC Constitutional law professor weighs in on what’s next for Gorsuch nomination

Judge Neil Gorsuch

Judge Neil Gorsuch

University of North Carolina Constitutional law professor Michael Gerhardt wrote a very detailed post Tuesday afternoon for SCOTUSblog outlining the path forward in the U.S. Senate for Judge Neil Gorsuch’s nomination to the U.S. Supreme Court.

The post begins by explaining how nominations and Senate confirmations work and then delves into a little history before getting to Gorsuch. Gerhardt points out that the Senate has confirmed 124 of 161 Supreme Court nominations over time.

He said that President Donald Trump promised to nominate someone in the mold of Scalia and kept that promise in nominating Gorsuch. In turn, Senate Majority Leader Mitch McConnell (R-Ky) has made clear that this time there will be hearings.

Former President Barack Obama nominated Merrick Garland to the bench last year but Senate Republicans refused to even hold a hearing. Since 1900, the Senate has given hearings to every Supreme Court nominee except for two — Garland and one who withdrew, Gerhardt wrote.

The meat of the post explains the objectives of the Senate majority (Republicans), minority (Democrats) and the White House. Gerhardt also notes that Democrats have three options to delay the nomination and delves into each one.

It’s a long post but well worth a read for anyone keeping up with the Supreme Court:

The Senate majority’s objective is simple, particularly when, as now, the president’s party controls the Senate: to move the nomination as quickly as possible through the Senate and to secure the confirmation of a new justice. The president has made this objective easier, because Gorsuch is a formidable nominee. He has had an outstanding career, including elite clerkships, law practice and widely regarded service on the U.S. Court of Appeals for the 10th Circuit. He has written a well-regarded book on euthanasia and co-authored another on the law of judicial precedent, and he has spoken and written about how much he revered Justice Scalia and about his own commitment to adhering to text, structure and original meaning in constitutional adjudication.

We can expect the majority to sound several basic themes in defending Gorsuch’s nomination. First, Republican senators will praise him as an outstanding nominee with impressive credentials. Second, they will laud his strong commitment to the same approach to constitutional interpretation as that of Scalia, who will likely be a metric for many Republican senators in assessing Supreme Court nominations. Third, they will not apologize for blocking Obama’s nomination of Garland to the seat. To the contrary, they will argue that the Democrats are responsible for whatever ails the Supreme Court confirmation process and the court. They will argue that the blockade of Garland’s nomination was the Democrats’ fault – that it was a response to Obama’s lawless executive actions, the Democrats’ obstruction of President George H.W. Bush’s and President George W. Bush’s circuit court nominations, the Democrats’ rejection of Reagan’s nomination of Bork to the Supreme Court in 1987, and then-Senator Joe Biden’s supposed threat to slow down judicial nominations during presidential election years. Last but not least, they will proudly defend their decision, moments after Scalia’s passing, to enable the American people to choose the next president to nominate the late justice’s successor.

The Senate minority’s objective is different. Democratic senators are scrambling to get up to speed on the nominee’s record. They are also still smarting from the denial of the seat to Garland. Had Garland been confirmed, his confirmation would have secured, for the first time since 1969, a majority of justices who were appointed by Democratic presidents. Instead, the minority finds itself looking for consensus on how best to respond to a nomination made “in the mold of Justice Scalia.”

To begin with, Democrats might argue that Gorsuch’s being “in the mold” of Scalia means nothing more than ruling as Republican senators would like. Democrats may argue that the nominee is actually to the right of Scalia on some issues. For example, he has criticized the Supreme Court’s (and Scalia’s) longstanding deference to how administrative agencies construe the statutes authorizing them to take action. It will not just be the similarities between the nominee and the late justice that will be closely examined, but also their differences.

Second, Democrats will undoubtedly argue that the Republican obstruction of the Garland nomination in order to give the public a say in who chooses the next justice was disingenuous and without precedent. They will point out that the Constitution does not make the public a formal player in the Supreme Court appointment process. It does not say that the Republican Party should dominate that process (as it has since the Civil War). It does not establish exemptions for Supreme Court appointments during election years. Nearly 20 presidents during election years, including several lame ducks, have made Supreme Court appointments, including President Reagan in 1988. Moreover, Democrats will argue that Republicans have created a new, dangerous precedent of the opposition party’s holding Supreme Court seats hostage until someone from their party is in the White House.

As a minority, Democratic senators do not have enough votes, on their own, to scuttle the nomination, even assuming that most or all of them would agree to do that. If they were able to pick off at least three Republican senators, they could cobble together a majority, but the chances of that are highly unlikely, given the nominee’s strong credentials and how much Republicans want to hang onto Scalia’s seat.

Democratic senators, therefore, might consider three options. First, they may try to delay or slow down Judiciary Committee hearings through a series of procedural moves, such as requesting additional materials from the nominee, urging further background or other investigation, inviting additional witnesses to testify, trying to place holds on debate and voting, and insisting on a detailed, written committee report before the nomination is forwarded to the full Senate for its consideration.

Second, once the nomination has moved through the committee, Democrats might try to block Senator McConnell from placing the nomination on the Executive Calendar and arranging for the Senate to go into executive session and consider the nomination. Usually, unanimous consent is needed for the Senate to proceed into executive session, but if Democrats try to thwart the move, McConnell may consider a non-debatable motion to go into executive session. This requires only a simple majority of those voting.

Once in executive session, Democrats’ options narrow. They could threaten a filibuster. If an outright rejection of the nomination is not in the cards (and it does not at this time appear to be), Democrats might consider that possibility. In 2013, then-Majority Leader Harry Reid (D-Nev.) led a successful effort to deploy the so-called nuclear option, which was a parliamentary move to implement by a majority vote in the Senate the understanding that the Senate rules could not be used to filibuster a lower court judicial or executive branch nominee. The Democrats left untouched the possibility of a filibuster of a Supreme Court nomination. Under the rules as they currently exist, a filibuster of a Supreme Court nomination requires at least 60 senators to invoke cloture – or force a vote – on the matter being filibustered. Some senators and many pundits wonder whether a filibuster is possible.

Senate Majority Leader McConnell has indicated he will not hesitate to use the nuclear option if Democrats threaten to filibuster, and President Trump has encouraged Republicans to do away with the filibuster even before Democrats have had a chance to consider using it. If the filibuster is dismantled, then approval of the nomination requires only a simple majority.

Without the filibuster, Democrats might consider trying to place “holds” on the nomination, but these are used strictly for delay and have to be made through the party leader, who may employ them to object to unanimous consent or to signal the possibility of a filibuster. Senators may also challenge the motion to discharge the nomination from the Judiciary Committee and seek to have it recommitted, a strategy that almost never works. They may demand quorum calls, which require the clerk to call the roll of the Senate. A quorum call cannot be terminated without unanimous consent, which will not be forthcoming. However, additional business must be conducted before another quorum call can be demanded, and the senator urging the quorum call loses the Senate floor. Democratic senators might try to prevent the achievement of a quorum, but Republicans could then attempt to force a quorum through Senate Rule VI, which provides that a “majority of the Senators present may direct the Sergeant of Arms to request, and, when necessary, to compel the attendance of the absent senators.”

Regardless of the options they consider for delaying the nomination, Democrats will use this occasion to educate the American people about how, in their view, this nomination and the president threaten judicial independence. If nothing else, they will try to ensure that, if Gorsuch is confirmed, there will always be an asterisk next to his name designating him as the justice who got the seat denied, in an unprecedented fashion, to Judge Garland.

Once the Senate gives its consent to the nomination, the confirmation process is over. Its real significance will, however, be determined in the contest over the next vacancy on the Supreme Court. Both sides are expecting that to be coming. The only question is when.

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